Date:
20090116
Docket: A-219-08
Citation: 2009 FCA 6
CORAM: DESJARDINS
J.A.
LÉTOURNEAU
J.A.
TRUDEL J.A.
BETWEEN:
PUBLIC SERVICE ALLIANCE OF CANADA
JEAN YVES DUHAIME, PAUL GRAVEL, CHRISTIAN
LEROUX,
JACQUES
LAFOND AND JOHN HICKEY
Appellants
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU
J.A.
[1] This
is an appeal against a decision of deputy judge Frenette of the Federal Court
(judge) by which he dismissed the appellants’ application for judicial review.
[2] The appellants raise the
following five grounds of appeal:
a) whether the judge applied the
proper standard of review;
b)
whether he erred in finding that the Canadian Industrial Relations
Board’s (Board) decision was not determinative of the appellants’ pension
status under the Public Service Superannuation Act, R.S.C. 1985, c. P-36
(PSSA) during the relevant period;
c)
whether he erred in failing to overturn the decision of Public Works
and Government Services Canada (PWGSC) regarding its determination of the
appropriate legal test for employee status under the Royal Canadian Mint Act,
R.S.C. 1985, c. R-9 (RCMA) and the PSSA;
d)
whether he erred in finding that the decision rendered by an officer of
PWGSC was reasonable; and
e) whether he erred in finding that
there was no breach of procedural fairness.
[3] Despite the able arguments of
counsel for the appellants, Mr. Andrew Raven, I have not been convinced that
the learned judge committed an error which warrants or requires the
intervention of this Court. I shall therefore address directly and succinctly
each ground of appeal.
The Standard of Review
[4] Pursuant to a Memorandum of
Understanding between the Public Service Service Alliance of Canada (PSAC) and
PWGSC, a representative of PSAC requested that PWGSC recognize the period
within which the appellants were employed by an independent contractor
(Pro-Fac) as “pensionable service” under the PSSA.
[5] Mrs. Boily, as a Policy and
Legislation Officer of PWGSC (officer), concluded that the appellants were not
“employees” of the Royal Canadian Mint (Mint) for the purposes of the PSSA.
[6] The judge found that the
determination made by the officer required that she applied the definition of
“employee” in sections 17 and 18 of the RCMA to the facts and circumstances
governing the work accomplished by the appellants. This involved a mixed
question of law and fact reviewable according to a standard of reasonableness:
see Dunsmuir v. New Brunswick, 2008 SCC 9, at
paragraph 53; Dynamex Canada Inc. v. Mamona, 2003 FCA 248, at paragraph
45; Estwick v. Canada (Attorney General), 2007 FC 894, at paragraph 80; Cohen
v. Canada (Attorney General), 2008 FC 676, at paragraphs 15 and 20. The
judge made no error when he applied that standard to a review of PWGSC’s
decision.
Whether
the Board’s decision was determinative of the appellants’ pension status during
the relevant period
[7] Pursuant to applications by PSAC
to have additional employees included in an existing bargaining unit in respect
of employees of the Mint, the Board ruled that the appellants fell within the
definition of “employee” for the purpose of the Canada Labour Code
(Code) and, accordingly, were to be included in the bargaining unit.
[8] We agree with the judge that a
determination of the appellants’ employment status by the Board for the
purposes of Part I – Industrial Relations of the Code does not entail a
determination of their pension status for the purposes of the PSSA. While the
Board possesses jurisdiction under Part I of the Code to proceed to the
determination of bargaining units and the certification of bargaining agents
and, in that context and for these purposes, to determine who is an “employee”
pursuant to the wide definition of “employee” in section 3 of the Code, it does
not possess the power to grant the appellants a pensionable status under the
PSSA. Section 16 of the Code which gives the power to the Board to decide any
question as to whether a person is an employer or an employee confers this
power only for the purposes of Part I of the Code:
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Powers
of Board
16. The Board has, in relation to any proceeding
before it, power
…
(p)
to decide for all purposes of this Part any question that may arise in
the proceeding, including, without restricting the generality of the
foregoing, any question as to whether
(i)
a person is an employer or an employee,
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Pouvoirs
du Conseil
16. Le Conseil peut, dans le cadre de toute
affaire dont il connaît :
[…]
p) trancher, dans le cadre de la présente
partie, toute question qui peut se poser à l’occasion de la procédure, et
notamment déterminer :
(i)
si une personne est un employeur ou un employé,
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[Emphasis added]
As the judge rightly pointed out, the Board in
fact never discussed the pension status of the appellants under the PSSA nor
granted them that status. Therefore, the matter could not be res judicata
for PWGSC.
[9] Counsel for the appellants relies
heavily on the decision of the Supreme Court of Canada in Pointe-Claire
(City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015,
upon which the Board also relied to conclude that the appellants were employees
of the Mint. I think he is giving that decision a scope of application that it
does not have and that both Chief Justice Lamer, who wrote for the majority of
the Supreme Court, and the Board, never intended to give. At paragraphs 1, 48
and 61, the learned Chief Justice goes at length to remind the readers that the
therein analysis of a tripartite relationship was made “in the collective
labour relations context”, “governed by the Labour Code”, with regard
“to provisions of the Labour Code” (words in bold in the original).
Paragraph 13 of the Board’s decision also makes it clear that the subject of
its decision is restricted to determining whether the appellants should be
included in the bargaining unit: see appeal book, at page 126.
[10] In Estwick v. Canada (Attorney General), supra, Heneghan
J. of the Federal Court found that a ruling of the Canada Revenue Agency that
the applicants were employees under the Public Service Employment Act,
R.S.C. 1985, c. P-33 was not determinative of their employment status under
that legislation and did not replace the formal appointment process required by
that legislation: see paragraph 92 of the decision. This is also true in our
case as the ruling of the Board is not determinative of the appellants’ pension
status and does not replace the formal appointment process under sections 17
and 18 of the RCMA.
[11] I now turn to the appointment process
of the employees of the Mint.
Whether
PWGSC failed to apply the proper legal test to the determination of the
appellants’ status as employee and whether the judge was right in holding that
the officer’s decision was reasonable
[12] I see no merit in this contention of
the appellants. Sections 17 and 18 of the RCMA confer upon the Mint the power
to hire employees and to contract out for other work or services. Pursuant to
section 17, the remuneration of employees of the Mint is “a charge against the
revenues of the Mint”. Once a person is an employee of the Mint, section 18
deems him or her “to be employed in the public service for the purposes of the
PSSA”. I reproduce both provisions:
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Officers
and employees
17. (1) The Mint may
appoint such officers, agents and employees as are necessary for the proper
conduct of the work of the Mint.
Remuneration
(2)
The remuneration of officers, agents and employees of the Mint shall be a
charge against the revenues of the Mint.
R.S.,
c. R-8, s. 15.
Master,
officers and employees not part of federal public administration
18. (1) The Master,
officers and employees of the Mint are not part of the federal public
administration but shall be deemed to be employed in the federal public
administration for the purposes of the Government Employees Compensation
Act and any regulations made pursuant to section 9 of the Aeronautics
Act.
Master
and employees deemed employed in public service
(2)
The Master, officers and employees of the Mint shall be deemed to be employed
in the public service for the purposes of the Public Service
Superannuation Act, and the Mint shall be deemed to be a Public Service
corporation for the purposes of that Act.
Contracting
powers not limited by collective agreements
(3)
No collective agreement entered into by the Mint with its employees pursuant
to Part I of the Canada Labour Code shall prohibit or limit the power of the
Mint to enter into contracts with any person to provide for the procurement
by the Mint of any goods or services from that person or the minting of coins
by that person.
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Recrutement
17. (1) La Monnaie peut nommer le personnel et
les mandataires nécessaires à l’exercice de ses activités.
Rémunération
(2)
La rémunération du personnel et des mandataires de la Monnaie est imputée sur
les recettes de l’établissement.
S.R.,
ch. R-8, art. 15.
Appartenance
à l’administration publique fédérale
18. (1) Le personnel de la Monnaie — le président
compris — est réputé faire partie de l’administration publique fédérale pour
l’application de la Loi sur l’indemnisation des agents de l’État et
des règlements pris en vertu de l’article 9 de la Loi sur l’aéronautique.
Appartenance
à la fonction publique
(2)
Le personnel de la Monnaie — le président compris — est réputé faire partie
de la fonction publique pour l’application de la Loi sur la pension de la
fonction publique. De même, la Monnaie est assimilée à un organisme de la
fonction publique pour l’application de cette loi.
Intégrité
du pouvoir de contracter
(3)
Les conventions collectives conclues entre l’établissement et son personnel
sous le régime de la partie I du Code canadien du travail n’ont pas pour
effet de porter atteinte au pouvoir de la Monnaie de passer des contrats pour
la frappe de pièces ou la fourniture — à l’établissement — de marchandises ou
services par le cocontractant.
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[13] Section 17 defines an employee of the
Mint as a person who has been appointed employee and whose remuneration is paid
by the Mint as a charge against the revenues of the Mint. The appointment is
certainly a statutory prerequisite which cannot be dispensed with or, as
previously mentioned, replaced by a ruling of the Board: see Canada
(Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R.
614, at paragraph 32.
[14] The issue that the officer of PWGSC
had to determine was whether the appellants were employees of the Mint for the
purposes of the PSSA. Contrary to the appellants’ submissions that the officer
decided that issue in the abstract on the basis of their employment contract
with Pro-Fac and without regard for the reality, there was ample and cogent
evidence for the officer and the judge to conclude that the appellants were not
hired or remunerated by the Mint during the relevant period, but rather were hired
and remunerated by Pro-Fac.
[15] The certificate which appears at pages
69 and 70 of the appeal book lists no less than 23 documents that were before
the officer and considered by her in making her decision.
[16] At page 95, the Hire Information Form
reveals without any ambiguity that, for example, appellant John Hickey was
hired by Pro-Fac and was reporting to the Facility Manager who was also an
employee of Pro-Fac.
[17] The Statement of Earnings and
Deductions at page 98 shows that Mr. Hickey was paid by Pro-Fac and that
Pro-Fac made the deductions for federal income tax and Canada Pension Plan.
[18] The appellants’ status as employees of
Pro-Fac is also evidenced, among other things, by articles 12.2 and 12.5 of the
contract between Pro-Fac and the Mint. Article 12.2 reads:
12.2
All
personnel assigned by the CONTRACTOR to fulfill the CONTRACTOR’s obligations
hereunder shall be and shall remain the employees of the CONTRACTOR who
shall be responsible for the arrangement of substitutions, pay, supervision,
discipline, unemployment insurance, Worker’s compensation, leave and all other
matters arising out of the relationship between employer and employee.
[Emphasis added]
[19] Moreover, under article 12.5, the Mint
was expressly prohibited from offering to employ or hiring any Pro-Fac employee
during the relevant period without Pro-Fac’s written consent. There was a hefty
penalty to be paid by the Mint in case of a violation of that prohibition. As a
matter of fact, it is only after the contract between Pro-Fac and the Mint
expired that some of the Pro-Fac employees were offered a position with the
Mint. For example, a letter of offer was sent to Mr. Hickey confirming that he
would be appointed employee of the Mint if he accepted the offer. The letter
also gave him his position, classification and remuneration. It also informed
him of the extensive benefits package that he would then enjoy, one of which
being the benefit of the retirement pension plan.
[20] In any event, I agree with counsel for
the respondent that, even if the common law test to determine the employment
status of the appellants were to be applied in this case, it would be
reasonable to conclude that the appellants were employees of Pro-Fac, not the
Mint during the relevant period.
[21] The conclusion reached by the officer as
to the employment status of the appellants for the purposes of the PSSA was
found by the judge to be reasonable, that is to say, as he puts it at paragraph
28 of his reasons for judgment, a conclusion which falls “within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
laws”. On the basis of the evidence and the record, I cannot say that his
conclusion is erroneous.
Whether there was a breach of procedural
fairness
[22] This issue was not raised in the
Notice of Application for judicial review nor in the affidavits in support of
said application. It appeared for the first time in the memorandum of fact and
law. The judge could have declined to deal with the issue, but he did not. He
found that there was no such breach. He was satisfied that the officer
considered relevant evidence and provided sufficient reasons. I agree with this
finding.
[23] I would add that the officer was not
required to distinguish her finding from the Board’s ruling because it was
neither determinative nor critical to her analysis.
Conclusion
[24] For these reasons, I would dismiss the
appeal with costs.
“Gilles
Létourneau”
“I
concur
Alice
Desjardins J.A.”
“I
agree
Johanne
Trudel J.A.”
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